In the Philippines, amparo and habeas data are prerogative writs to supplement the inefficacy of the writ of habeas corpus (Rule 102, Revised Rules of Court). Amparo means 'protection,' while habeas data is 'access to information.'Literally, 'may you have the data' in Latin. Both writs were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.Supremecourt.gov.ph, National Consultative Summit on Extrajudicial Killings and Enforced Disappearances Summary of Recommendations
On July 16, 2007, Philippine Chief Justice Reynato Puno and Justice Adolfo Azcuna officially declared the legal conception of the Philippine Writ of Amparo ("Recurso de Amparo"), at the historic Manila Hotel National Summit on Extrajudicial Killings and Enforced Disappearances.Supremecourt.gov.ph, Summit on Extrajudicial Killings Sows Hope Extrajudicial killings, ‘View from the mountaintop’
On August 25, 2007, Reynato Puno declared the legal conception of amparo's twin, the supplemental Philippine Habeas Data. Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs in October 2007, as his legacy to the Filipino nation. Puno admitted the inefficacy of Habeas Corpus, under Rule 102, Rules of Court, since government officers repeatedly failed to produce the body upon mere submission of the defense of alibi.
By invoking the truth, Habeas Data will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno's writ of amparo—Spanish for 'protection'—will bar military officers in judicial proceedings to issue denial answers regarding petitions on disappearances or extrajudicial executions, which were legally permitted in Habeas corpus proceedings.Inquirer.net, SC drafting writ of habeas data invoking right to truth
The Supreme Court of the Philippines announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, to be deliberated by the En Banc Court on September 25.News.balita.ph, Draft Guidelines on Writ of Amparo approved on September 23
Origin
Mexican amparo Chief Justice Reynato Puno noted that the model for amparo was borrowed from Mexico: the right of amparo is a Mexican legal procedure to protect human rights. Of Mexican origin, thus, "amparo" literally means "protection" in Spanish.[Barker, R., “Constitutionalism in the Americas: A Bicentennial Perspective,” 49 University of Pittsburgh Law Review (Spring, 1988) 891, 906.] de Tocqueville's "Democracy in America" had been available in Mexico, in 1837 and its description of judicial review practice in the U.S. appealed to many Mexican jurists.[Id., citing Zamudio, F., “A Brief Introduction to the Mexican Right of Amparo,” 9 California Western International Law Journal (1979) 306, 309] Mexican justice Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan, which empowered jurists to protect all persons in the enjoyment of their constitutional and legal rights. This was incorporated into the 1847 national constitution.[“At the time it adopted Rejón’s amparo, Yucatan had separated itself from Mexico. After a few months, the secession ended and the state resumed its place in the union.” (Barker, R., supra at 906.)][Acta de Reformas, art. 25 (1847) (amending Constitution of 1824).] The great right proliferated in the Western Hemisphere, slowly evolving into various fora. Amparo became, in the words of a Mexican Federal Supreme Court Justice, Mexico's "task of conveying to the world’s legal heritage that institution which, as a shield of human dignity, her own painful history conceived."[Rule on the Right of Amparo: Annotation, p. 45. See Article 107 of the Constitution of Mexico; Article 28(15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia.][Provost, R., supra at 698, citing Ramirez, F., “The International Expansion of the Mexican Amparo,” 1 Inter-American Law Review (1959) 163, 166.]
Amparo's evolution and metamorphosis had been witnessed, for several purposes: "(1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus right; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casación for the judicial review of the constitutionality and legality of ac judicial decisión; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants' rights derived from the agrarian reform process."[Rule on the Right of Amparo: Annotation, p. 45; see also Zagaris, B., “The Amparo Process in Mexico,” 6 Mexico Law Journal (Spring 1998) 61, 66 and Provost, R., supra at 708-709.]
Latin American countries, except Cuba, used the great right to protect against human rights abuses especially committed in countries under military juntas, adopting an all-encompassing amparo, even to protect socio-economic rights. But other countries like Colombia, Chile, Germany and Spain, opted to limit amparo shield only to some constitutional guarantees or fundamental rights.[Brewer-Carias, A., “The Latin American Amparo Proceeding and the Right of Amparo in the Philippines,” Second Distinguished Lecture, Series of 2007, Supreme Court, Philippine Judicial Academy in coordination with the Philippine Association of Law Schools, March 7, 2008.] In the Philippines, while the 1987 Constitution of the Philippines failed to expressly provide for amparo, several amparo protections are already guaranteed, thus: by paragraph 2, Article VIII, Section 1, the "Grave Abuse Clause" - which grants a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is similar to habeas corpus in the 1987 Constitution. The Clause is borrowed from the U.S. common law tradition of judicial review (1803 case of Marbury v. Madison).[See 1987 Phil. Const. Art. III, §§ 13 & 15; Art. VII, § 18; Art. VIII, § 5(1).][ 5 U.S. 137 (1803). See Gormley, K. “Judicial Review in the Americas: Comments on the United States and Mexico,” 45 Duquesne Law Review (Spring, 2007) 393.]
Justice Adolfo Azcuna, a member of two Constitutional Commissions of 1971, and 1986 previously made a study on the Right amparo as published in the Ateneo Law Journal (see Adolfo S. Azcuna, The Right of Amparo: A Remedy to Enforce Fundamental Rights, 37 ATENEO L.J. 15 (1993).).
The "recurso de amparo" is an exhaustive remedy which originated from Latin America's Mexican, Chilean and Argentinian legal systems, inter alia. Mexico's amparo is found in Articles 103 and 107 of the Mexican Constitution -- the judicial review of governmental action, to empower state courts to protect individuals against state abuses. Amparo was sub-divided into 5 legal departments: (a) the Liberty Amparo (amparo de libertad); (b) the Constitutionality Amparo (amparo contra leyes); (c) the Judicial or "Cassation" Amparo, aimed at the constitutionality of a judicial interpretation; (d) the Administrative Amparo (amparo como contencioso-administrativo); and (e) the Agrarian Amparo (amparo en matera agraria, ejidal y comunal).Inquirer.net, Joaquin G. Bernas, The Mexican amparo
Argentine amparo Amparo was also legally enshrined in Latin America legal systems. It is now an extraordinary legal remedy in Bolivia, Chile, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay Peru, Brazil and Argentina. Amparo in Argentina is a limited, summary, emergency procedure, and merely supplementary, requiring previous exhaustion of administrative remedies before rendition of judgment of mandamus or injunction. The decision bars monetary awards and penal provisions except contempt or declaration of unconstitutionality.Inquirer.net, Joaquin G. Bernas, The Argentine amparo
Habeas corpus Historically, Philippine Habeas Corpus (from 1901 until the present) failed to provide an efficacious legal remedy to victims of extra-judicial killings and desaparecidos. The amparo de libertad transcends the protection of habeas corpus. Once a lawsuit is filed under Habeas Corpus, Rule 102, Rules of Court, the defendants, government officers would merely submit the usual defense of alibi or non-custody of the body sought to be produced. The 1987 Philippine constitution, however, empowers the Supreme Court of the Philippines to promulgate amparo and habeas data, as part of the Rules of Court expressly: “Promulgate rules concerning the protection and enforcement of constitutional rights.” (Sec. 5, (5), Article VIII, 1987, Constitution)
The writ of habeas corpus is an "extraordinary", "common law", or "prerogative writ", which were historically issued by English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party.
National Summit on Extrajudicial Killings and Enforced Disappearances On July 16, 2007, Justices, activists, militant leaders, police officials, politicians and prelates attended the Supreme Court of the Philippines's 2-day summit at the Manila Hotel, Metro Manila to solve extrajudicial killings. Chief Justice Reynato Puno stated that the "National Consultative Summit on Extrajudicial Killings and Forced Disappearances: Searching for Solutions" would help stop the murders. Based on CBCP - Bishop Deogracias Yniguez-church's count, the number of victims of extrajudicial killings was record at 778, while survivors of "political assassinations" was 370; 203 "massacre" victims; 186 desaparecido; 502 tortured, and those illegally arrested.GMA NEWS.TV, Justices, activists, prelates map out ways to end killings
Puno requested for truce and talks with insurgents: "Let us rather engage in the conspiracy of hope…and hope for peace." Puno forwarded the summit's recommendation to President Gloria Macapagal Arroyo, the Senate and the House of Representatives. GMA NEWS.TV, CPP: SC summit can’t stop mastermind of killings Inquirer.net, Let's engage in a conspiracy of Hope ABS-CBN Interactive, More groups ask Supreme Court to junk anti-terror law
“Extralegal killings” (UN instruments term) are those committed without due process of law, which include summary and arbitrary executions, “salvagings”, threats to take the life of journalists, inter alia. “Enforced disappearances” (defined by Declaration on the Protection of All Persons from Enforced Disappearances), include: arrest, detention or abduction by a government official or organized groups under the government; the refusal of the State to disclose the fate or whereabouts of missing persons, inter alia. Abs-Cbn Interactive, The writ of amparo: Judiciary’s sword unsheathed
Writs of amparo and habeas data